By Iman Sjahputra, SH., SpN., LL.M*)

It may be that the for layman, the term Intellectual Property Right (IPR) is not a strange thing. But actually such recognition of the term knowledge is still not yet fully understood. Many people mix the use of terms used in  IPR  as if they are of the same meaning, thereby many terms are used  and understood wrongly. We often heard that people use the term trademark, copy right, patent, design  as if the terms are of the same meaning. Worst is when the knowledge on  IPR is not understood by legal enforcers. Actually the terms have different meaning. The term trademark tend to be sticked to the product or services. Patent is more leaded on technological invention, and copyright concerns with art, science and literature. While design concerns with form, configuration and pattern of a product. So is the case with trade secret, integrated circuit, plant varieties, all of which are protected under IPR law.

Lack of understating on  IPR terms also effects on the settlement of dispute in the field of IPR that sometimes it becomes very complicated. Many cases on IPR are perceived as if they all subject to the same procedures for settlement. For example the people think that procedure for trial on patent  is same with that of the case of trademark. Actually in the case of patent, the core point is not whether or not there is any similarity in principle  found as required in trademark law.

In the case of patent in relation to invention the very essence is whether or not there is any novelty in the invention. In other words, the point that must be seen in the case of patent is, is there any novelty in the applied invention ? Novelty does not mean that it must be a new one; it may be that the novelty on the invention is in the form of addition or improvement of the patented product.

Law No 14 of 2001 provides protection for an invention which contains any improvement of a product that has been granted with patent. Legal enforcers often do not understand that point or pretend to not know it at all.  That’s why many cases on patents  are tried/settled based on understanding on the terms used in trademark law. It is strange but it happened in many cases.

In a criminal case on patent with regards to invention in high technology in general it must be accompanied with laboratory investigation to find out substantive truth that can be objected by the witness of expert in certain field.

Misleading Trial

With naked eye  invention can not been seen from  its form or configuration or design like that of design law. But unfortunately it often happened in the process of trial that there is statement of witness which mistaken that affect patent case that may fatally affect the verdicts of the judgment, if not to say misleading judgment.

Why that happened ? It is because of miss use or  mistakes in the use of the terms of IPR in its application. Legally, it is impossible to settle the case of patent same with the case of  industrial design. When it is done so, then it will cause gross mistake / fatality in the trial of the case. For example when a judge decided that in the case certain invention similarity  is found as  is in prior invention solely based on   statement of a witness  who gave his opinion based on the form of the invention instead of findings based on  laboratory checking.

Whilst we know that  whether or not there I any similarity in an invention can not be qualified based on  statement of an expert. It shall be based on laboratory checking by independent laboratory. Even if there is statement of an expert in the case of patent it is to be used as a guidance only and shall not become the deciding point in giving judgment to a patent case.

In the science of patent there are some  recognized categories of patent, among other are  “utility patent”, “plant patent” and “ design patent”. A utility patent is a specific invention which concerns with technology. In this mater it may include product or process, or improvement and development of product or process.

Thus a new product which is based on improvement of  existing product can not be deemed as imitation of the existing product. Patent will remain be deemed exist when the improved product has its novelty.

For example  Air Condition. Seen from their forms of design, we can find that  almost any type of air conditioning equipment produced by many producers have  similar design. The inventor is granted right to exploit his invention. In the history of development we can see then that further development will be made on the prior air condition equipment. The advantages of equipment will be more exposed.

For example Air condition equipment that is able to adjust itself with weather condition which will cool when it is hot and when it is cool it will stop automatically. Would not be that such an invention not granted with patent  right ?

In so far as an invention has its novelty compared to that of “prior art” it is  certain that patent right be granted. The inventors can not be alleged to have imitated his invention based on prior art solely on the allegation that the invention has the same or similar formula. A similar product does not mean that it violates the other patent when it can be proven that there is novelty in the invention. We do not want that this country will be labelled as a weak country in the enforcement of law on IPR. We expect that public in general and especially the legal enforcers  would be open minded on the   meaning of terms in IPR because the matters of IPR will become more  complicated in line with  development in globalization era.

*) The writer is a practicing attorney domiciled in Jakarta